Opinion
Civil Action No. 5:00-CV-417-C
February 13, 2002
ORDER
The Court has considered the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by Petitioner, Bubba L. Williams (Williams). Respondent filed an answer, together with relevant parole revocation and state habeas records. Williams responded to the answer.
Respondent has lawful and valid custody of Williams pursuant to a judgment and sentence of the 32nd District Court of Nolan County, Texas. Williams entered a plea of guilty to the felony offense of delivery of a controlled substance and was found guilty by the trial court. Punishment was assessed on January 11, 1988, at 18 years' imprisonment.
Williams is not attacking his conviction, but instead is challenging the validity of a parole revocation in 2000. Williams was initially paroled in October 1989; however, his parole was revoked in July 1994. He was paroled a second time on March 13, 1997. The Certificate of Parole provided that while on parole, Williams remained in the legal custody of the Texas Department of Criminal Justice, Institutional Division. The Certificate of Parole also indicated that Williams's discharge date would be 6-6-2010.
On September 8, 1997, a Warrant was issued directing the retaking of Williams as an "Administratively Released Prisoner." "Administrative release" was defined as including release on parole. The warrant ordered that Williams "be arrested, detained and housed until such time as he may be placed in the custody of an agent of the Texas Department of Criminal Justice, Institutional Division, or until further order. . . ."
Williams was arrested in the State of California on May 28, 2000, and waived extradition. He was returned to the custody of the Texas Department of Criminal Justice, Institutional Division on June 14, 2000. On June 20, 2000, Williams was advised of his rights in the revocation process and given notice of the alleged violations of parole. Williams was accused of three parole violations — (1) failing to report as directed by his parole officer, (2) changing residence without written permission from his parole officer, and (3) being in the State of California without written permission from his parole officer. Williams admitted each violation and requested a final revocation hearing.
A final revocation hearing was held on August 16, 2000, and Williams again admitted each violation. He did, however, present mitigating evidence as to the reasons for his violations. Williams's parole was revoked by the Board of Pardons and Paroles on August 25, 2000.
Williams filed one state habeas application challenging the validity of his 2000 parole revocation. The Texas Court of Criminal Appeals dismissed the petition on October 4, 2000.
Williams's allegations are summarized as follows:
(1) his parole was revoked prior to his revocation hearing because he was recommitted to prison and treated as an incoming prisoner before the revocation hearing;
(2) he was denied due process at his revocation hearing;
(3) the parole board retroactively applied amended parole laws to his revocation; and
(4) the parole board failed to conduct a timely revocation hearing.
Williams's claim that his parole was revoked prior to the final revocation hearing is based upon his being returned to the custody of the Texas Department of Criminal Justice, Institutional Division after his arrest in California. Further, he claims that his official discharge date was changed from a date of 8-8-2007 in July 2000 to 6-6-2010 on August 11, 2000, prior to the revocation hearing.
Texas law provides that a person released on parole remains in the legal custody of the institutional division. Tex. Gov't Code Ann. § 508.143 (Vernon 1998). A warrant issued for the arrest of a parolee, as in Williams's case, "must require the return of the person to the institution from which the person was paroled or released." Tex. Gov't Code Ann. § 508.251 (Vernon 1998).
Williams's Certificate of Parole, issued on March 5, 1997, noted that Williams's discharge date would be 6-6-2010 if he satisfactorily completed his parole, which is the same discharge date noted on his parole violation report and the hearing report processing sheet.
Williams's claim that his parole was revoked before his revocation hearing is without merit.
Williams asserts that a number of his constitutional rights were violated with regard to his parole revocation proceedings. The Supreme Court has held that a parole revocation "is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." Morrissey v. Brewer, 408 U.S. 471, 480 (1972); see also, United States v. Marmolejo, 915 F.2d 981, 982 (5th Cir. 1990) (noting that parole and revocation hearings are not "criminal cases"). Nevertheless, a parole revocation proceeding must comply with basic due process requirements. Morrissey, 408 U.S. at 484.
In Morrissey, the Supreme Court outlined the minimum constitutional requirements to be afforded in the revocation process. First, there is to be a preliminary hearing in which the state determines "whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions." 408 U.S. at 485.
If it has been determined that there was probable cause to believe that the parolee violated the conditions of his parole, the State must hold a final revocation hearing within a reasonable time to determine if the facts warrant revocation. The parolee may waive the final revocation hearing. 408 U.S. at 483. The Supreme Court found that the Due Process Clause required six essential protections:
(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.408 U.S. at 489.
"A parolee's admission of a violation does not eviscerate the due process protections otherwise accorded him." Williams v. Johnson, 171 F.3d 300, 304 (5th Cir. 1999). "[A] parolee, even one who has admitted the violation of a parole condition, has a qualified right to . . . present evidence in support of mitigation." Id. at 305.
There is no absolute right to counsel during parole revocation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).
The Court has reviewed the records of the parole revocation hearing and finds that Williams was accorded all of the due process rights to which he was due, including the right to present mitigating evidence.
Williams claims that the State applied new parole laws regarding technical violations to his parole revocation to ensure that he would be incarcerated for at least one year in prison.
Procedural changes in the parole laws, "even if they work to the disadvantage of a criminal defendant, do not violate the Ex Post Facto Clause." Creel v. Kyle, 42 F.3d 955, 957 (5th Cir. 1995) (quoting Collins v. Youngblood, 497 U.S. 37 (1990)).
Further "it follows that because [a prisoner] has no liberty interest in obtaining parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to parole decisions." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995).
"For an ex post facto violation to occur, two elements must be present: (1) a law must be retrospective, that is, it must apply to events occurring before its enactment, and (2) the new law must create a sufficient risk of increasing the punishment attached to the defendant's crimes." Warren v. Miles, 230 F.3d 688, 692 (5th Cir. 2000) (citing California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995)).
Williams's claim that he was denied a timely revocation hearing must fail. The right to a speedy trial is not applicable to parole revocation hearings. United States v. Williams, 558 F.2d 224, 226 (5th Cir. 1977); United States v. Tippins, 39 F.3d 88, 89 (5th Cir. 1994). Williams must demonstrate that any delay was unreasonable and that actual prejudice resulted from the unreasonable delay. Villarreal v. United States Parole Commission, 985 F.2d 835, 837 (5th Cir. 1993). Williams was arrested on June 13, 2000, and his final revocation hearing was held on August 16, 2000. Williams admitted the violations. He has failed to establish actual prejudice by any alleged delay.
To the extent that Williams is challenging the loss of street-time and good-time credits, his claims are without merit. Texas law does not entitle a prisoner to credit for time spent on parole. Morrison v. Johnson, 106 F.3d 127, 129 (5th Cir. 1997), citing Tex. Code Crim. P. Ann. art. 42.18 § 14(a) (West 1997) ("When a person's parole, mandatory supervision . . . is revoked, that person may be required to serve the portion remaining of the sentence on which he was released, such portion remaining to be calculated without credit for the time from the date of his release to the date of revocation.") See also, Newby v. Johnson, 81 F.3d 567 (5th Cir. 1996) (there is no statutory right to credit for "street time" served on parole).
Further, there is no inherent right to good time credits. Wolff v. McDonnell, 418 U.S. 538, 557 (1974). Whether designated "good time" or "work time" credits, these credits do not become vested. Exparte Morris, 626 S.W.2d 754, 757 (Tex.Cr.App. 1982); Hamill v. Wright, 870 F.2d 1032, 1036 (5th Cir. 1989) (there is no federal constitutional right to the award of good conduct time credits); Hallmark v. Johnson, 118 F.3d 1073, 1079-80 (5th Cir. 1997) (Texas legislation rendering forfeited good time credits non-restorable does not violate ex post facto laws).
To the extent that Williams is attempting to challenge the conditions of his confinement after he was returned to the custody of the Texas Department of Criminal Justice, Institutional Division, those claims are not cognizable in a habeas action.
Based upon the foregoing, the Court finds that Williams's Petition for a Writ of Habeas Corpus should be denied.
All relief not expressly granted is denied and any pending motions are denied.
SO ORDERED.
JUDGMENT
For the reasons stated in the Court's Order of even date,
It is ORDERED, ADJUDGED, AND DECREED that Petitioner's petition for a writ of habeas corpus is DENIED and this cause is DISMISSED with prejudice.